David Earl Wilson v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary at Angola, Louisiana

825 F.2d 879, 1987 U.S. App. LEXIS 11673

Opinions

EDITH H. JONES, Circuit Judge,

dissenting:

The panel adheres to our initial opinion, which concluded that Wilson did not allege facts sufficient to state a claim of constitutional ineffectiveness of counsel at the guilt phase on the issue of petitioner’s competency or sanity. Incongruously, however, the majority remands this issue for an evidentiary hearing in the district court. I respectfully dissent.

The majority advance two reasons in support of remand. First, they consider it a matter of clemency because Wilson’s is a capital case. Second, they find that the marginal added inconvenience to the state of including this issue in an evidentiary hearing does not outweigh the petitioner’s rights because the same general evidence will be introduced on this issue as on the claim we have already remanded.

My perspective on clemency is different. Petitioner is represented in this Court, as he was at trial, by extremely diligent counsel. Should we not assume his appellate counsel obtained the strongest possible psychiatric affidavit to fortify petitioner’s belated insanity or incompetency claims? If the affidavit was nevertheless insufficient to comport with Louisiana law establishing the insanity defense or with Bruce v. Estelle, 483 F.2d 1031 (5th Cir.1973), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977), we raise false hopes in the petitioner to offer him a hearing on counsel’s effectiveness at the guilt phase of the trial.

Reviving this facially invalid claim also unnecessarily burdens the federal district court and the state. Admittedly, the facts that bear upon the issues remanded for trial here are about as closely intertwined as one can imagine. Even if the evidence on guilt phase competency parallels that on competency at the sentencing phase of trial, however, additional briefing, opinion writing and appellate review efforts will be required. Townsend v. Sain counseled against mis-spending scarce judicial resources in the trial of frivolous claims not only because such expenditure is wasteful but because it results in “acute and unnecessary friction” with the state’s criminal law enforcement process. 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1961). For this latter reason, the fact that a hearing has already been ordered on one facially plausible claim should not open for review other meritless issues simply because they are factually similar. I would rely on the unquestioned integrity of the state judicial process and the obvious care with which petitioner’s habeas counsel framed his issues and evidence as justifications for denying petitioner a futile second bite at the apple on his trial counsel’s effectiveness at the guilt phase.

My final disagreement with the majority lies in their interpretation of Autry v. Estelle, 719 F.2d 1251, 1252 (5th Cir.1983). I regard Autry as sui generis, because, as the majority acknowledge, Autry’s first hearing on competency of counsel was requested, set and heard within 24 hours of his scheduled execution. No such expedition attended this petitioner’s presentation of issues in the district court. Moreover, the district court had found Autry’s allegations sufficient to warrant an evidentiary hearing in the first place. Neither the district court nor this court, acting in Wilson’s case, reached this conclusion. Thus, unlike the majority, I regard the factual distinctions from Autry as insurmountable for Wilson.¹

I respectfully dissent from the majority’s order on rehearing.

1

. The majority do not seem to suggest, and I fully share their reluctance to conclude, that Autry mandates or militates toward holding a federal evidentiary hearing in every capital case. To do so would surely run afoul of concerns of federalism engrafted upon habeas corpus review. See also Barefoot v. Estelle, 463 U.S. 880, 887-88, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983).